{ "id": 8567944, "name": "ALEX HENSLEY, Father; CHRISTINE A. HENSLEY, Mother; ALEX HENSLEY, Guardian Ad Litem for CYNTHIA GAYLE HENSLEY, Sister, and CHRISTOPHER DAVID HENSLEY, Brother of DALE BRISCOE HENSLEY, Deceased v. CASWELL ACTION COMMITTEE, INC., MARYLAND CASUALTY COMPANY", "name_abbreviation": "Hensley v. Caswell Action Committee, Inc.", "decision_date": "1979-02-05", "docket_number": "No. 15", "first_page": "527", "last_page": "533", "citations": [ { "type": "official", "cite": "296 N.C. 527" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "241 S.E. 2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": -1 }, { "cite": "35 N.C. App. 544", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550452 ], "year": 1978, "opinion_index": -1, "case_paths": [ "/nc-app/35/0544-01" ] }, { "cite": "128 S.E. 2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "258 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560408 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0287-01" ] }, { "cite": "111 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1959, "pin_cites": [ { "page": "304" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "251 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625091 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0304-01" ] }, { "cite": "199 S.E. 265", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1938, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "214 N.C. 835", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633366 ], "year": 1938, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0835-01" ] }, { "cite": "196 S.E. 875", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1938, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "875" } ], "opinion_index": 0 }, { "cite": "213 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629247 ], "year": 1938, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0546-01" ] }, { "cite": "188 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "281 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574679 ], "year": 1972, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0234-01" ] }, { "cite": "124 S.E. 2d 109", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "110-11" } ], "opinion_index": 0 }, { "cite": "256 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573005 ], "year": 1962, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0427-01" ] }, { "cite": "56 N.C.L. Rev. 1166", "category": "journals:journal", "reporter": "N.C. L. Rev.", "opinion_index": 0 } ], "analysis": { "cardinality": 717, "char_count": 14444, "ocr_confidence": 0.857, "pagerank": { "raw": 2.916086894307383e-07, "percentile": 0.8461645833405731 }, "sha256": "383191500d77fc4487bde61914892213ade5f54c394194d925f815b1eff1fba7", "simhash": "1:554b6df7e6ba693c", "word_count": 2424 }, "last_updated": "2023-07-14T21:17:53.962359+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BROCK did not participate in the consideration or decision of this case." ], "parties": [ "ALEX HENSLEY, Father; CHRISTINE A. HENSLEY, Mother; ALEX HENSLEY, Guardian Ad Litem for CYNTHIA GAYLE HENSLEY, Sister, and CHRISTOPHER DAVID HENSLEY, Brother of DALE BRISCOE HENSLEY, Deceased v. CASWELL ACTION COMMITTEE, INC., MARYLAND CASUALTY COMPANY" ], "opinions": [ { "text": "EXUM, Justice.\nThe deceased, a boy of 14 years, drowned in the Yanceyville Reservoir while on the job he was hired to do by defendant Caswell Action Committee, Inc., after being generally instructed by his supervisor not to go in the water. The Court of Appeals held that his death was not compensable. We reverse. We also conclude that the Deputy Commissioner who heard the case on remand from the Industrial Commission properly limited the hearing to testimony concerning wage rates. Finally we conclude the Industrial Commission erred in its determination of the average weekly wage to be used in computing benefits under G.S. 97-2(5), and we modify its award accordingly.\nDecedent, Dale Briscoe Hensley, was employed by defendant Caswell Action Committee, Inc., in June of 1975. He was assigned to work for the Caswell Sanitation District under the supervision of Mr. Aaron Wilson. Decedent was 14 years old. Working with him were two other boys, James Alexander Long, age 15, and Robert A. Scott, age 17. Their tasks included cutting weeds on the banks of the Yanceyville Reservoir. Wilson had given them general instructions that while they were cutting the weeds they should not go into the water.\nOn 30 June 1975 the three boys had almost worked their way around the reservoir. About noon they noticed some growth they had missed on the other side. Decedent and Long, instead of walking the long way around the dam, waded toward the spot across the reservoir, wearing their work clothes and boots and carrying their tools. Scott refused to join them in wading across. Both decedent and Long stepped into a deep hole, apparently the creek bed that led out of the reservoir. Long was able to get back to safety, but decedent drowned.\nDecedent\u2019s next of kin subsequently sought to recover against defendants under the Workmen\u2019s Compensation Act. The case first came to be heard on 19 January 1976 before Deputy Commissioner Roney, who found decedent\u2019s death to be compen-sable and set decedent\u2019s average weekly wage for the purpose of calculating benefits at $120. At defendants\u2019 request, the Indsutrial Commission remanded the case for the taking of further testimony. A second hearing was held before Deputy Commissioner Denson who also found decedent\u2019s death to be compensable but set the average weekly wage at $100. The Industrial Commission adopted her decision in all respects except for the average weekly wage, which it set at $120. The Court of Appeals reversed the award of the Industrial Commission, finding that decedent\u2019s death was not compensable.\nThe first, and most important, issue before us is whether decedent\u2019s death was a result of an accident arising out of and in the course of employment. This is the basic inquiry which must be satisfied before recovery can be had for any injury under the Workmen\u2019s Compensation Act. See G.S. 97-2(6); \u201cWorkmen\u2019s Compensation Law,\u201d Survey of Developments in North Carolina Law, 1977, 56 N.C.L. Rev. 1166-68 (1978). An \u201caccident\u201d is \u201can unlooked for and untoward event which is not expected or designed by the injured employee.\u201d Harding v. Thomas & Howard Co., 256 N.C. 427, 428, 124 S.E. 2d 109, 110-11 (1962). There can be no doubt that decedent\u2019s death by drowning was an \u201caccident\u201d in this sense. \u201cThe words \u2018in the course of the employment\u2019 . . . refer to the time, place and circumstances under which an accidental injury occurs; the phrase \u2018arising out of the employment\u2019 refers to the origin or cause of the accidental injury.\u201d Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E. 2d 350, 353 (1972). We have little difficulty holding that decedent\u2019s death occurred \u201cin the course of the employment.\u201d Decedent at the time of his death was on the job and was engaged in the process of moving from one point to another on the work site to continue his task.\nThe more difficult question is whether decedent\u2019s death arose out of his employment. Defendants rely on several cases in which employees were denied recovery under the Workmen\u2019s Compensation Act because they disobeyed their employers\u2019 directives in such a fashion that the causal connection between employment and injury was broken. The Court of Appeals relied on this line of cases in reversing the Industrial Commission. We think these cases are distinguishable and hold that decedent\u2019s death did arise out of his employment.\nIn Teague v. Atlantic Co., 213 N.C. 546, 196 S.E. 875 (1938) (per curiam), decedent was killed when he attempted to ride a conveyor belt from one floor to another instead of taking the stairs. He had done so before, been reprimanded by his supervisors and positively forbidden to do so again. Among the findings of the Industrial Commission was the following: \u201cThe employee Teague\u2019s attempt to ride the empty crate conveyor from the basement to the first floor was an attempt either for his own personal convenience or for the thrill of performing a hazardous feat; to do an obviously dangerous thing.\u201d Id. at 547, 196 S.E. at 875. On these facts this Court affirmed a ruling by the Industrial Commission that there was no causal connection between the employment and the injury.\nIn Morrow v. Highway Commission, 214 N.C. 835, 199 S.E. 265 (1938) (per curiam), decedent was engaged in painting a bridge over the Catawba River and dropped his paint brush in the river. \u201cSomething was said about going into the water to recover the brush, and the foreman told the deceased not to do so. In violation of this instruction deceased pulled off his clothing, went into the river for the purpose of recovering the paint brush, and was drowned.\u201d Id. at 835, 199 S.E. at 266. The Industrial Commission concluded that decedent\u2019s death did not arise out of his employment, and this Court affirmed.\nIn Taylor v. Dixon, 251 N.C. 304, 111 S.E. 2d 181 (1959), plaintiff sought to recover for injuries sustained to his leg when a tractor turned over on him. Defendants argued that he should not recover because his injuries did not arise out of his employment. The evidence showed that plaintiff was hired to run a power saw. There was testimony that when he got on the tractor he was told to get off and replied that \u201che was going to drive the damn tractor that day.\u201d Id. at 304, 111 S.E. 2d at 182. When told he was going to hurt himself the way he was driving the tractor, he said \u201cOld man, I will get down and whip your * * * if you don\u2019t hush up. I know what I am doing.\u201d Id. The Industrial Commission failed or refused to find facts in relation to the defense raised by this evidence. This Court remanded the case for reconsideration because of this procedural failing. As we read the decision, no opinion was expressed on the merits.\nOf the cases relied on by defendants, then, Taylor actually deals with procedural rather than substantive matters; Teague involved dangerous thrill-seeking completely unrelated to the employment; and Morrow involved the performance of an obviously dangerous act in the face of an immediate and specific order not to do that very act. While decedent\u2019s actions in this case had the same unfortunate result as the actions in Teague and Morrow, they were not so extreme as to break the causal connection between his employment and his death. Decedent was a 14 year old boy working without immediate adult supervision. He had received only general instructions at some undetermined earlier time not to go in the water. He was not engaged in thrill-seeking unrelated to his employment, nor was the danger obvious. The place where he and Long stepped in was shallow and they could see the bottom. He was proceeding from his work on one side of the reservoir to complete his work on the other side.\nWe think this case is more akin to Hartley v. Prison Department, 258 N.C. 287, 128 S.E. 2d 598 (1962). Plaintiff in Hartley was a prison guard. In the course of his duties he was going to relieve another guard in a tower. Instead of walking some 300 feet to a gate, he took a short cut by climbing over a fence, fell and was injured. The superintendent of the prison testifed that it was against the rules to climb over the fence, although there was testimony that employees had done so before. The Industrial Commission entered an award granting compensation, and this Court, in an opinion by Justice Higgins, affirmed. Justice Higgins\u2019 conclusion in the case fits almost perfectly with our conclusion here:\n\u201cThe essence of the story in this case may be told in few words: Usually the idea of a short cut is attractive. Sometimes it is dangerous. To follow [defendant\u2019s] contention would require us to hold that contributory negligence in this case is a complete defense. Our cases construing the [Workmen\u2019s Compensation] Act hold to the contrary.\u201d Id. at 291, 128 S.E. 2d at 601.\nThe Industrial Commisison was correct in deciding that decedent\u2019s death was a result of an accident arising out of and in the course of his employment.\nThe next issue is whether Deputy Commissioner Denson improperly limited testimony before her to matters relating to wage rates. At the first hearing before Deputy Commissioner Roney defendants offered no evidence as to the average weekly wage because they mistakenly thought the matter was settled by a stipulation. They asked to be allowed to put in more evidence on this question, and the Industrial Commission remanded for that purpose. The notice of hearing issued by the Commission read as follows:\n\u201cSubject Of Hearing\nTo take such testimony as either side desires to offer bearing on the question of the rate at which compensation shall be paid as provided under GS 97-2(5) in the event com-pensability is ultimately found herein.\u201d (Emphasis supplied.)\nDefendants sought to introduce additional evidence on the issue of compensability. To receive such evidence was not the purpose of this hearing, and Deputy Commissioner Denson acted correctly in excluding it.\nThe final issue is whether the Commission erred in setting the average weekly wage for purposes of determining compensation. It was stipulated that decedent made $40.10 per week. There was uncontradicted evidence that adults employed as decedent was employed could make up to $84 per week. The Industrial Commission set decedent\u2019s average weekly wage as follows:\n\u201cDecedent\u2019s average weekly wage shall be calculated upon a wage sufficient to yield the maximum weekly compensation benefits which was $120.00 on the date of the accident. This will produce a compensation rate of $80.00 per week.\u201d\nComputation of the average weekly wage of an injured minor employee is controlled by G.S. 97-2(5), which states:\n\u201cWhere a minor employee, under the age of 18 years, sustains a permanent disability or dies leaving dependents surviving, the compensation payable for permanent disability or death shall be calculated, first, upon the average weekly wage paid to adult employees employed by the same employer at the time of the accident in a similar or like class of work which the injured minor employee would probably have been promoted to if not injured, or, second, upon a wage sufficient to yield the maximum weekly compensation benefit.\u201d (Emphasis supplied.)\nWe read this statute as establishing a clear order of preference. When the first method of compensation can be used, it must be used. There was uncontradicted evidence concerning the average weekly wage of adults employed in a similar class of work by the same employer to which decedent would probably have been promoted had he not been killed. That wage was $84 per week. Under G.S. 97-38, the award to decedent\u2019s next of kin should have been for 6673 percent of that wage, or $56, paid for 400 weeks from the date of decedent\u2019s death.\nThe decision of the Court of Appeals is reversed. The case is remanded to that court for further remand to the Industrial Commission with directions to modify its award in accordance with this opinion.\nReversed and remanded.\nJustice BROCK did not participate in the consideration or decision of this case.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Blackwell & Farmer, by R. Lee Farmer, Attorneys for plaintiff appellants.", "Johnson, Patterson, Dilthy & Clay, by I. Edward Johnson, Attorneys for defendant appellees." ], "corrections": "", "head_matter": "ALEX HENSLEY, Father; CHRISTINE A. HENSLEY, Mother; ALEX HENSLEY, Guardian Ad Litem for CYNTHIA GAYLE HENSLEY, Sister, and CHRISTOPHER DAVID HENSLEY, Brother of DALE BRISCOE HENSLEY, Deceased v. CASWELL ACTION COMMITTEE, INC., MARYLAND CASUALTY COMPANY\nNo. 15\n(Filed 5 February 1979)\n1. Master and Servant \u00a7 55.5\u2014 workmen\u2019s compensation \u2014 death by drowning \u2014 accident arising out of and in the course of employment\nThe death of a fourteen-year-old employee of a sanitary district by drowning while he was attempting to- wade across a reservoir to complete his work of cutting weeds on the other side arose out of and in the course of his employment, although he had received general instructions at an earlier time not to go into the water, where the place at which he stepped into the water was shallow and the danger was not obvious, and decedent\u2019s actions were thus not so extreme as to break the causal connection between his employment and his death.\n2. Master and Servant \u00a7 94.4\u2014 scope of hearing for further testimony\nWhere the Industrial Commission remanded a workmen\u2019s compensation case for the taking of further testimony as to average weekly wage, and the notice of hearing stated that the purpose of the further hearing was to take testimony \u201cbearing on the question of the rate at which compensation shall be paid,\u201d the hearing commissioner on remand properly excluded evidence on the issue of compensability and properly limited the testimony to matters relating to wage rates.\n3. Master and Servant \u00a7 71.1\u2014 workmen\u2019s compensation \u2014 death of minor employee \u2014 computation of average weekly wage\nUnder G.S. 97-2(5), compensation for the death of a minor employee must be based on the average weekly wage of adults employed in a similar class of work by the same employee to which decedent would probably have been promoted had he not been killed if such method can be used, and it is only when such method cannot be used that compensation may be based upon a wage sufficient to yield the maximum weekly compensation benefit.\nJustice Brock did not participate in the consideration or decision of this case.\nAPPEAL by plaintiffs pursuant to G.S. 7A-30(2) from a decision of the Court of Appeals, reported at 35 N.C. App. 544, 241 S.E. 2d 852 (1978), reversing an award by the Industrial Commission.\nBlackwell & Farmer, by R. Lee Farmer, Attorneys for plaintiff appellants.\nJohnson, Patterson, Dilthy & Clay, by I. Edward Johnson, Attorneys for defendant appellees." }, "file_name": "0527-01", "first_page_order": 551, "last_page_order": 557 }